Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (Text with relevance for the EEA and for Switzerland)

TITLE I

GENERAL PROVISIONS

CHAPTER I

Definitions

Article 1

Definitions

For the purposes of this Regulation:

(a) ‘basic Regulation’ means Regulation (EC) No 883/2004;

(b) ‘implementing Regulation’ means this Regulation; and

(c) the definitions set out in the basic Regulation shall apply.

In addition to the definitions referred to in paragraph 1,

(a) ‘access point’ means an entity providing: (i) an electronic contact point; (ii) automatic routing based on the address; and (iii) intelligent routing based on software that enables automatic checking and routing (for example, an artificial intelligence application) and/or human intervention;

(b) ‘liaison body’ means any body designated by the competent authority of a Member State for one or more of the branches of social security referred to in Article 3 of the basic Regulation to respond to requests for information and assistance for the purposes of the application of the basic Regulation and the implementing Regulation and which has to fulfil the tasks assigned to it under Title IV of the implementing Regulation;

(c) ‘document’ means a set of data, irrespective of the medium used, structured in such a way that it can be exchanged electronically and which must be communicated in order to enable the operation of the basic Regulation and the implementing Regulation;

(d) ‘Structured Electronic Document’ means any structured document in a format designed for the electronic exchange of information between Member States;

(e) ‘transmission by electronic means’ means the transmission of data using electronic equipment for the processing (including digital compression) of data and employing wires, radio transmission, optical technologies or any other electromagnetic means;

(f) ‘Audit Board’ means the body referred to in Article 74 of the basic Regulation.

CHAPTER II

Provisions concerning cooperation and exchanges of data

Article 2

Scope and rules for exchanges between institutions

Article 3

Scope and rules for exchanges between the persons concerned and institutions

To the extent necessary for the application of the basic Regulation and the implementing Regulation, the relevant institutions shall forward the information and issue the documents to the persons concerned without delay and in all cases within any time limits specified under the legislation of the Member State in question.

The relevant institution shall notify the claimant residing or staying in another Member State of its decision directly or through the liaison body of the Member State of residence or stay. When refusing the benefits it shall also indicate the reasons for refusal, the remedies and periods allowed for appeals. A copy of this decision shall be sent to other involved institutions.

Article 4

Format and method of exchanging data

Article 5

Legal value of documents and supporting evidence issued in another Member State

Article 6

Provisional application of legislation and provisional granting of benefits

Unless otherwise provided for in the implementing Regulation, where there is a difference of views between the institutions or authorities of two or more Member States concerning the determination of the applicable legislation, the person concerned shall be made provisionally subject to the legislation of one of those Member States, the order of priority being determined as follows:

(a) the legislation of the Member State where the person actually pursues his employment or self-employment, if the employment or self-employment is pursued in only one Member State;

(b) the legislation of the Member State of residence if the person concerned pursues employment or self-employment in two or more Member States and performs part of his/her activity or activities in the Member State of residence, or if the person concerned is neither employed nor self-employed;

(c) in all other cases, the legislation of the Member State, the application of which was first requested if the person pursues an activity, or activities, in two or more Member States.

If necessary, the institution identified as being competent and the institution which provisionally paid the cash benefits or provisionally received contributions shall settle the financial situation of the person concerned as regards contributions and cash benefits paid provisionally, where appropriate, in accordance with Title IV, Chapter III, of the implementing Regulation.

Benefits in kind granted provisionally by an institution in accordance with paragraph 2 shall be reimbursed by the competent institution in accordance with Title IV of the implementing Regulation.

Article 7

Provisional calculation of benefits and contributions

CHAPTER III

Other general provisions for the application of the basic Regulation

Article 8

Administrative arrangements between two or more Member States

Article 9

Other procedures between authorities and institutions

Article 10

Prevention of overlapping of benefits

Notwithstanding other provisions in the basic Regulation, when benefits due under the legislation of two or more Member States are mutually reduced, suspended or withdrawn, any amounts that would not be paid in the event of strict application of the rules concerning reduction, suspension or withdrawal laid down by the legislation of the Member States concerned shall be divided by the number of benefits subjected to reduction, suspension or withdrawal.

Article 11

Elements for determining residence

Where there is a difference of views between the institutions of two or more Member States about the determination of the residence of a person to whom the basic Regulation applies, these institutions shall establish by common agreement the centre of interests of the person concerned, based on an overall assessment of all available information relating to relevant facts, which may include, as appropriate:

(a) the duration and continuity of presence on the territory of the Member States concerned;

(b) the person’s situation, including: (i) the nature and the specific characteristics of any activity pursued, in particular the place where such activity is habitually pursued, the stability of the activity, and the duration of any work contract; (ii) his family status and family ties; (iii) the exercise of any non-remunerated activity; (iv) in the case of students, the source of their income; (v) his housing situation, in particular how permanent it is; (vi) the Member State in which the person is deemed to reside for taxation purposes.

Article 12

Aggregation of periods

Article 13

Rules for conversion of periods

Where periods completed under the legislation of a Member State are expressed in units different from those provided for by the legislation of another Member State, the conversion needed for the purpose of aggregation under Article 6 of the basic Regulation shall be carried out under the following rules:

(a) the period to be used as the basis for the conversion shall be that communicated by the institution of the Member State under whose legislation the period was completed;

(b) in the case of schemes where the periods are expressed in days the conversion from days to other units, and vice versa, as well as between different schemes based on days shall be calculated according to the following table: Scheme based on 1 day corresponds to 1 week corresponds to 1 month corresponds to 1 quarter corresponds to Maximum of days in one calendar year 5 days 9 hours 5 days 22 days 66 days 264 days 6 days 8 hours 6 days 26 days 78 days 312 days 7 days 6 hours 7 days 30 days 90 days 360 days

(c) in the case of schemes where the periods are expressed in units other than days, (i) three months or 13 weeks shall be equivalent to one quarter, and vice versa; (ii) one year shall be equivalent to four quarters, 12 months or 52 weeks, and vice versa; (iii) for the conversion of weeks into months, and vice versa, weeks and months shall be converted into days in accordance with the conversion rules for the schemes based on six days in the table in point (b);

(d) in the case of periods expressed in fractions, those figures shall be converted into the next smaller integer unit applying the rules laid down in points (b) and (c). Fractions of years shall be converted into months unless the scheme involved is based on quarters;

(e) if the conversion under this paragraph results in a fraction of a unit, the next higher integer unit shall be taken as the result of the conversion under this paragraph.

The application of paragraph 1 shall not have the effect of producing, for the total sum of the periods completed during one calendar year, a total exceeding the number of days indicated in the last column in the table in paragraph 1(b), 52 weeks, 12 months or four quarters.

If the periods to be converted correspond to the maximum annual amount of periods under the legislation of the Member State in which they have been completed, the application of paragraph 1 shall not result within one calendar year in periods that are shorter than the possible maximum annual amount of periods provided under the legislation concerned.

TITLE II

DETERMINATION OF THE LEGISLATION APPLICABLE

Article 14

Details relating to Articles 12 and 13 of the basic Regulation

For the purposes of Article 13(1) of the basic Regulation, an employed flight crew or cabin crew member normally pursuing air passenger or freight services in two or more Member States shall be subject to the legislation of the Member State where the home base, as defined in Annex III to Council Regulation (EEC) No 3922/91 of 16 December 1991 on the harmonization of technical requirements and administrative procedures in the field of civil aviation (¹), is located.

For the purposes of the application of Article 13(1) and (2) of the basic Regulation, a ‘substantial part of employed or self-employed activity’ pursued in a Member State shall mean a quantitatively substantial part of all the activities of the employed or self-employed person pursued there, without this necessarily being the major part of those activities.

To determine whether a substantial part of the activities is pursued in a Member State, the following indicative criteria shall be taken into account:

(a) in the case of an employed activity, the working time and/or the remuneration; and

(b) in the case of a self-employed activity, the turnover, working time, number of services rendered and/or income.

In the framework of an overall assessment, a share of less than 25 % in respect of the criteria mentioned above shall be an indicator that a substantial part of the activities is not being pursued in the relevant Member State.

Article 15

Procedures for the application of Article 11(3)(b) and (d), Article 11(4) and Article 12 of the basic Regulation (on the provision of information to the institutions concerned)

Article 16

Procedure for the application of Article 13 of the basic Regulation

Where uncertainty about the determination of the applicable legislation requires contacts between the institutions or authorities of two or more Member States, at the request of one or more of the institutions designated by the competent authorities of the Member States concerned or of the competent authorities themselves, the legislation applicable to the person concerned shall be determined by common agreement, having regard to Article 13 of the basic Regulation and the relevant provisions of Article 14 of the implementing Regulation.

Where there is a difference of views between the institutions or competent authorities concerned, those bodies shall seek agreement in accordance with the conditions set out above and Article 6 of the implementing Regulation shall apply.

Article 17

Procedure for the application of Article 15 of the basic Regulation

Contract staff of the European Communities shall exercise the right of option provided for in Article 15 of the basic Regulation when the employment contract is concluded. The authority empowered to conclude the contract shall inform the designated institution of the Member State for whose legislation the contract staff member of the European Communities has opted.

Article 18

Procedure for the application of Article 16 of the basic Regulation

A request by the employer or the person concerned for exceptions to Articles 11 to 15 of the basic Regulation shall be submitted, whenever possible in advance, to the competent authority or the body designated by the authority of the Member State, whose legislation the employee or person concerned requests be applied.

Article 19

Provision of information to persons concerned and employers

Article 20

Cooperation between institutions

Article 21

Obligations of the employer

TITLE III

SPECIAL PROVISIONS CONCERNING THE VARIOUS CATEGORIES OF BENEFITS

CHAPTER I

Sickness, maternity and equivalent paternity benefits

Article 22

General implementing provisions

Article 23

Regime applicable in the event of the existence of more than one regime in the Member State of residence or stay

If the legislation of the Member State of residence or stay comprises more than one scheme of sickness, maternity and paternity insurance for more than one category of insured persons, the provisions applicable under Articles 17, 19(1), 20, 22, 24 and 26 of the basic Regulation shall be those of the legislation on the general scheme for employed persons.

Article 24

Residence in a Member State other than the competent Member State

The document referred to in paragraph 1 shall remain valid until the competent institution informs the institution of the place of residence of its cancellation.

The institution of the place of residence shall inform the competent institution of any registration under paragraph 1 and of any change or cancellation of that registration.

Article 25

Stay in a Member State other than the competent Member State

A. Procedure and scope of right

B. Procedure and arrangements for meeting the costs and providing reimbursement of benefits in kind

If the reimbursement of such costs has not been requested directly from the institution of the place of stay, the costs incurred shall be reimbursed to the person concerned by the competent institution in accordance with the reimbursement rates administered by the institution of the place of stay or the amounts which would have been subject to reimbursement to the institution of the place of stay, if Article 62 of the implementing Regulation had applied in the case concerned.

The institution of the place of stay shall provide the competent institution, upon request, with all necessary information about these rates or amounts.

C. Family Members

Article 26

Scheduled treatment

A. Authorisation procedure

If an insured person does not reside in the competent Member State, he shall request authorisation from the institution of the place of residence, which shall forward it to the competent institution without delay.

In that event, the institution of the place of residence shall certify in a statement whether the conditions set out in the second sentence of Article 20(2) of the basic Regulation are met in the Member State of residence.

The competent institution may refuse to grant the requested authorisation only if, in accordance with the assessment of the institution of the place of residence, the conditions set out in the second sentence of Article 20(2) of the basic Regulation are not met in the Member State of residence of the insured person, or if the same treatment can be provided in the competent Member State itself, within a time-limit which is medically justifiable, taking into account the current state of health and the probable course of illness of the person concerned.

The competent institution shall inform the institution of the place of residence of its decision.

In the absence of a reply within the deadlines set by its national legislation, the authorisation shall be considered to have been granted by the competent institution.

If an insured person who does not reside in the competent Member State is in need of urgent vitally necessary treatment, and the authorisation cannot be refused in accordance with the second sentence of Article 20(2) of the basic Regulation, the authorisation shall be granted by the institution of the place of residence on behalf of the competent institution, which shall be immediately informed by the institution of the place of residence.

The competent institution shall accept the findings and the treatment options of the doctors approved by the institution of the place of residence that issues the authorisation, concerning the need for urgent vitally necessary treatment.

B. Meeting the cost of benefits in kind incurred by the insured person

C. Meeting the costs of travel and stay as part of scheduled treatment

D. Family members

Article 27

Cash benefits relating to incapacity for work in the event of stay or residence in a Member State other than the competent Member State

A. Procedure to be followed by the insured person

B. Procedure to be followed by the institution of the Member State of residence

C. Procedure to be followed by the competent institution

D. Procedure in the event of a stay in a Member State other than the competent Member State

Article 28

Long-term care benefits in cash in the event of stay or residence in a Member State other than the competent Member State

A. Procedure to be followed by the insured person

B. Procedure to be followed by the institution of the place of residence

C. Procedure to be followed by the competent institution

D. Procedure in the event of a stay in a Member State other than the competent Member State

E. Family members

Article 29

Application of Article 28 of the basic Regulation

If the Member State where the former frontier worker last pursued his activity is no longer the competent Member State, and the former frontier worker or a member of his family travels there with the purpose of receiving benefits in kind pursuant to Article 28 of the basic Regulation, he shall submit to the institution of the place of stay a document issued by the competent institution.

Article 30

Contributions by pensioners

If a person receives a pension from more than one Member State, the amount of contributions deducted from all the pensions paid shall under no circumstances be greater than the amount deducted in respect of a person who receives the same amount of pension from the competent Member State.

Article 31

Application of Article 34 of the basic Regulation

A. Procedure to be followed by the competent institution

B. Procedure to be followed by the institution of the place of residence or stay

Article 32

Special implementing measures